1. On 2 May 1994, the Inter-American Commission on Human Rights
(hereinafter "the Commission") received a petition filed
against the Peruvian
State (hereinafter "the Peruvian State," "the State,"
or "Peru") in which Rodolfo Robles Espinoza, a retired
Major General [General de División] of the
Peruvian army, reported that he had been victimized for publicly
revealing, by means of an open letter of 6 May 1993, the existence
of a "death
squad," known as the "Colina Group," set up by
Perus National Intelligence Service (SIN).1

2. At that time, General Robles, in his capacity as the head
of the Army Instruction School (COINDE) and former commander of
the Third Military
Region based in Arequipa, was technically the third most senior
officer in the Peruvian army. In retaliation, according to the
complaint, a series of
hostile acts were undertaken against him and his family, consisting
of death threats and criminal prosecutions based on false accusations
filed with
the military courts. Also in retaliation, the Superior Council
[Consejo Superior] of the Armed Forces arbitrarily ruled that
he was to be retired on
disciplinary grounds, thus depriving him of the benefits to which
he was entitled after almost 30 years active service in
the Peruvian army. The
petitioner claims that the Peruvian State has no real procedure
for ending the constant harassment or for restoring the rights
taken away from him.

II. BACKGROUND

The Events

3. The violations that General Robles alleges, according to
the information appearing in the file, are the following:

On 5 May 1993, General Rodolfo Robles publicly revealed that
Perus National Intelligence Service (SIN) had set up a "death
squad," called the
Colina Group, which was charged with physically eliminating terrorists.
According to his claim, the members of the Colina Group had been
responsible for the illegal arrest and subsequent extrajudicial
execution of one professor and nine students from La Cantuta University
on 17 July
1992, and for the slaughter of 14 people in the Barrios Altos
incident of November 1991. General Robles revealed the names of
the soldiers who
made up this "death squad" and stated that the Commander
in Chief of the Army, General Nicolás de Bari Hermoza Ríos,
and President Fujimoris
advisor, Mr. Vladimiro Montesinos, were involved in covering up
and masterminding those incidents.

4. The information supplied by General Robles allowed the Peruvian
judicial authorities to prosecute and convict ranking officers
in Perus Armed
Forces in the La Cantuta case and led to the identification and
trial of the suspected perpetrators of the massacre of 14 people
in Barrios Altos.
The military officials convicted in the La Cantuta proceedings
were subsequently freed under Amnesty Law No. 26.479.

5. On 5 May 1993,2 General Robles Espinoza publicly stated
that as a result of his revelations in connection with these incidents,
he was receiving
threats against his life and person, as were his two sons. In
light of these threats, General Robles stated that he was forced
to leave Peru with his
family and take refuge in the United States Embassy. On 7 May
1993, following steps taken by the United States Embassy, General
Rodolfo Robles
Espinoza was able to leave for Argentina as an exile. Along with
General Robles Espinoza, his sons José and Rodolfo Robles
Montoya, both officers in
the Peruvian army, were also forced to leave the country.

Reprisals through Disciplinary Measures

6. As a result of the allegations regarding the existence of
a death squad made by General Rodolfo Robles, the officers of
Perus Army, Navy, and Air
Force adopted Supreme Resolution No. 179 DE/EP of 10 May 1993,
resolving, inter alia:

To retire, as of 10 May 1993, Major General Rodolfo ROBLES
ESPINOZA, on DISCIPLINARY GROUNDS, for having committed serious
disciplinary offenses against the military service, honor, decorum,
and duty.

7. The document states that General Robless allegations
constitute "a crude attempt to attribute to the Peruvian
army an alleged human rights
violation, using falsified and forged documents to discredit the
forces of order (. . .)." It also adds that General Robles
"(. . .) had no qualms in
maliciously undermining the army and his commanders, comrades
in arms, and subordinates with false allegations (. . .); thus
showing himself to be
a major general disloyal to the institution, his superiors, and
himself, and failing to meet the requirements of military honor
and decorum behooving
him as both a man and a soldier."

8. The legal basis for this resolution was Articles 55(F) and
61 of the Military Status Law. However, according to General Robles,
the punishment of
enforced retirement was imposed on him without following the rules
governing disciplinary proceedings set forth in the Military Status
Law, in that
he was convicted without being summoned, heard, or involved at
trial. Thus, the disciplinary measure is an arbitrary act, causing
him to suffer a
reduction in his retirement pension and the denial of his entitlement
to medical treatment at the military hospital and other rights
acquired after
almost 30 years service in the Armed Forces.

Reprisals through Criminal Prosecutions

9. On 7 May 1993, the Court-Martial Prosecutor of the Supreme
Council of Military Justice filed criminal charges against Major
General Rodolfo
Robles Espinoza for the crimes of insubordination, insulting a
superior, undermining the Armed Forces, abusing his authority,
making false
statements, and dereliction of duty to the detriment of the Peruvian
State and Army.3 On 13 May, the Supreme Councils Court-Martial
Prosecutor
expanded the charges against General Rodolfo Robles to include
the crimes against military honor, decorum, and duty described
in Article 270 of the
Code of Military Justice. The charges were admitted by the Investigating
Magistrate of the Supreme Council of Military Justices Court-Martial
division, who, in an investigation expansion writ of 21 May 1993,
added the crime of disobedience.

10. In addition, the Supreme Council of Military Justices
Court-Martial Prosecutor also began criminal proceedings against
General Robless sons,
Captain José Robles Montoya and Lieutenant Rodolfo Robles
Montoya, for the crimes of disobedience and dereliction of duty.4
On 21 May 1993,
acting on an ex officio basis, the Investigating Magistrate issued
an investigation expansion writ for the crime of disobedience.
The Investigating
Magistrate subsequently issued a warrant for the arrest of the
accused.

11. On 1 June 1993, this military court declared General Robles
and his sons to be prisoners in absentia and designated the Supreme
Court of
Military Justices court-appointed attorney to serve as their
defense counsel.5 In the absence of the accused, on 19 July 1993
the Supreme Council
of Military Justices Court-Martial began proceedings "for
the crimes of insubordination, making false statements, undermining
the nation and the
Armed Forces, dereliction of duty to the detriment of the Peruvian
State and army, insulting superiors in the person of the Commander
in Chief of
the Army and Chairman of the Armed Forces Joint Chiefs of Staff,
abusing authority to the detriment of former captain and lawyer
Vladimiro
Montesinos Torres and other generals, superiors, officers, rank
and file, and auxiliary personnel of the Peruvian army, crimes
against military honor,
decorum, and duty, and disobedience; and against Capt. José
Robles Montoya (retired) and Lieutenant Rodolfo Robles Montoya
(retired) for the
crimes of disobedience and dereliction of duty."6

12. The punishment applicable to these crimes included a 15-year
prison term. In addition, the Prosecutor requested that General
Robles be
required to pay the amount of USD $4,500,000 for "civil reparations";
consequently, a preventive embargo was placed on General Rodolfo
Robles
Espinozas property, savings, and retirement pension.

Campaign against his Good Name

13. According to the complaint, the top echelons of Perus
Armed Forces began a campaign to discredit General Robles. In
documents circulated
among the Peruvian army he was accused of being "a traitor
to the fatherland and the Peruvian army," "a collaborator
with the enemy," and a
"cheap and cowardly mercenary."7 The Peruvian army also
released these reports to the mass media, and letters of support
for Commander in Chief
Nicolás de Bari Hermoza Ríos insulting General Robles
were also published.

Amnesty and Return from Exile in Argentina

14. On 5 September 1995, the Peruvian State informed General
Rodolfo Robles Espinoza that he could return to the country because,
under
Amnesty Law No. 29.479, the criminal proceedings against him had
been dropped.8

15. While General Robles was in exile, unidentified persons
had made threats against his wife and his son, Jaime Robles, who
had remained in Peru.
Although these threats were duly reported, the Department of Public
Prosecutions [Ministerio Público] conducted no investigation
to identify the
persons behind them.

16. The death threats against General Robles and his family
continued after their return to Peru in September 1995. One individual
threatened the
General over the telephone in the following terms:

Were going to kill you, traitor, you and your family;
were going to kill your wife. So stop being a pain in the
ass or youll be sorry.

Other similar calls were made on later occasions.

17. On 27 September 1995, a group from the Magistrates
Security Division of the state security forces arrived at General
Robles Espinozas home
with instructions to protect his life and person. That same day,
General Robles received anonymous death threats in telephone calls
placed shortly
after the security forces had withdrawn.

18. The telephone threats and surveillance of General Rodolfo
Robles increased in October 1995 after the filing of an amparo
constitutional
protection action requesting the annulment of Supreme Resolution
No. 179 DE/EP of 10 May 1993, which had arbitrarily ordered his
retirement.
According to General Robles, these threats were intended to intimidate
him into withdrawing this action brought before the Peruvian courts
of
justice.

Detention of General Robles

19. In a communication received by the Commission on 28 November
1996, General Robles reported that on 26 November 1996 he left
his home to
go to the offices of Banco Santander located on block 32 of Avenida
Arenales, Lima, and, as he was returning home at around 10:00
a.m., he was
intercepted by two carsa Hyundai, registration JQ-7256,
and a Toyota, registration HQ-8299. Several tall, heavy men wearing
suits emerged from
these vehicles and, without saying a word, beat General Rodolfo
Robles to the ground and forced him into one of the cars. From
the vehicle General
Robles was able to inform residents and street traders from the
area that he was being arrested by members of the National Intelligence
Service
(SIN). His assailants then sprayed him with a paralyzing gas to
keep him from saying anything else. The cars sped off and were
joined some blocks
later by other vehicles; they all went to the Real Felipe Military
Barracks, a military prison, were General Robles was detained.

20. General Robless arrest, according to the complaint,
was in response to his statements to the media following the attack
on the installations of
Global de Televisión and Radio Audio Samoa in the city
of Puno on 17 October 1996. Police investigations identified members
of the army attached
to the National Intelligence Service (SIN) as the possible perpetrators
of these incidents, including Angel Felipe Sauni Pomaya. General
Robles
claimed in his statements that this officer belonged to the Colina
paramilitary group and had been directly involved in carrying
out the La Cantuta
and Barrios Altos crimes.

21. The military authorities first denied that General Robles
had been captured and only acknowledged the fact several hours
after the media and
several international and local human rights organizations reported
that the identities of the individuals who had detained him, the
reasons for his
arrest, and where he was being held were all unknown.

22. Upon learning of the arrest, Mrs. Nelly Montoya Robles,
General Robless wife, went to the headquarters of the Supreme
Council of Military
Justice, accompanied by her lawyers. There they met with Colonel
Roger Araujo, who told them that General Robles was being charged
with
"insulting the Armed Forces and general mendacity."
General Robles Espinozas family and lawyers then went to
the Real Felipe Barracks, where one
General Pita informed them that he was only authorized to allow
the detainee to meet with his attorney, not with his family. After
an exchange of
words, he was also allowed to speak to his family.

23. After meeting with this officer, General Robless
defense attorney once again went to the headquarters of the Supreme
Council of Military
Justice to read the file and hear the charges made against the
General. Colonel Roger Araujo replied that the file was not available
and that General
Robless case was not recorded in the register of cases.
The defense attorney then asked for a hearing with the Investigating
Magistrate, but this
was refused.

24. The only information the defense attorney could obtain
was a copy of General Robless arrest warrant, which accused
him of "the crime of
undermining the Armed Forces." The crime of undermining the
Armed Forces, according to the scant information provided, supposedly
arose from
General Robles Espinozas statements to the media.

25. That same day, individuals identifying themselves as members
of the Colina Group death squad made death threats over the telephone
to
members of General Rodolfo Robles Espinozas family.

26. On 27 November 1996, the Investigating Magistrate issued
a resolution barring Dr. Heriberto Benítez, General Rodolfo
Robles Espinozas defense
attorney, from practicing law before the military courts for a
period of three months. This punishment was for statements he
made to the "La Clave"
radio program, saying that there was a risk of military criminal
rules being applied inappropriately since not all the Supreme
Council of Military
Justices magistrates were lawyers. The Investigating Magistrate
called these claims false, offensive, and harmful to the honor
and majesty of the
military courts. Heriberto Benítez appealed this disciplinary
measure before the Military Court (Consejo de Guerra), which increased
the punishment
to five months and also ordered certified copies of the incident
to be sent to the Duty Provincial Prosecutor. According to the
complaint, this
disciplinary measure had the effect of removing the defense lawyer
from the criminal proceedings brought against General Robles.

Habeas Corpus Remedy

27. On 28 November 1996, General Robles Espinozas family
filed a writ of habeas corpus with the 33rd Criminal Court in
Lima, presided over by Dr.
Elba Greta Minaya Calle. This legal recourse was intended to determine
the reasons behind General Robless arrest and to protect
his person. When
Judge Greta Elba Minaya Calle arrived at the Real Felipe Barracks
for the purposes of the habeas corpus action, the military authorities
refused her
access, stating they had orders from their superiors.

28. Consequently, on 29 November 1996, Judge Elba Greta Minaya
Calle ruled the habeas corpus action to be grounded, in that there
was no order
from a competent authority for the arrest of General Robles. According
to this ruling, the military courts did not have authority to
arrest a retired
military officer, since under the terms of Articles 12 and 70
of Legislative Decree 752, the Military Status Law, military justice
did not apply to them.
Dr. Minaya Calle found that the arrest constituted a violation
of General Robless right to personal freedom, and to due
process, in this case by
means of kidnapping, and she ordered his immediate release. She
also sent copies of the proceedings to the Duty Provincial Prosecutor
for the
appropriate criminal action to be brought against the military
authorities responsible for General Robless arrest.

29. On 30 November 1996, Court Secretary Carmen del Castillo
Ruíz Caro went to the Real Felipe Barracks to give notice
of the judicial resolution.
The individuals in charge of the barracks refused to receive the
notification and to carry out the Courts order. Colonel
Jorge Carcovich Cortelezzi
was then called, who reported that he had orders from the Supreme
Council of Military Justice not to receive the notification. After
an exchange of
words, this officer told the Court Secretary that the Investigating
Magistrate would report to the barracks to explain the situation.
However, at
6:00 p.m., Col. Carcovich invited the Secretary to leave, stating
that he had orders from above and that the Investigating Magistrate
was not
going to come to the barracks. The Secretary then prepared an
aide memoire recording the military authorities refusal
to abide by the Court order.

30. On 30 November 1996, at 7:00 p.m., the Investigating Magistrate
informed General Robles of the resolution ordering his definitive
arrest. The
definitive arrest order was dated 29 November that is, the day
before notification of the habeas corpus ruling.

31. On 13 December 1996, the Specialized Chamber of Public
Law of the Superior Court of Justice of Lima handed down a ruling
upholding the
resolution of 29 November 1996, which declared the admissibility
of General Robless habeas corpus remedy on the grounds that
there had been a
violation of his right to personal freedom, and his right to due
process, by means of kidnapping, and resolved to refer the proceedings
to the Public
Prosecutor for an investigation into those crimes to begin.

Special Amnesty for General Robles

32. On Friday, 6 December 1996, a special amnesty decree, Law
No. 26.669, was issued, which granted "amnesty to retired
officers of the Armed
Forces being tried under military jurisdiction for sundry crimes,"
in particular, military officers being tried for the crime of
undermining the Armed
Forces. General Rodolfo Robles was released under this law that
very day.

Special Amnesty for the Persons who Ordered and Carried-out
the Arrest General Robles

33. Along with the special amnesty law for General Robles,
another amnesty law, No. 26.700, was enacted, which granted "amnesty
to military and
civilian personnel being investigated, denounced, or tried under
civilian or military jurisdiction for carrying out actions related
to or associated with
sundry crimes." This annulled the resolution of the Permanent
Duty Judge, as upheld on appeal, which had ordered the individuals
responsible for
General Robless capture to be investigated for the crime
of kidnapping and crimes against due process.

34. According to the complaint, the public officials to be
investigated included agents of the Army Intelligence Service
and General Nicolás de Bari
Hermoza Ríos, Commander in Chief of the Peruvian Army,
who ordered the arrest. These persons acted with the complicity
of Major General Juan
Yanque Cervantes (Director of Army Intelligence), Major General
Guido Guevara Guerra (President of the Supreme Council of Military
Justice), Major
General Hugo Pow Sang (Investigating Magistrate of the Supreme
Council) and soldier Raúl Talledo V. (Prosecutor of the
Supreme Council).
Consequently, the special amnesty directly benefited these officers.

III. PROCESSING BY THE COMMISSION

35. On 2 May 1994, General Rodolfo Robles Espinoza presented
a complaint to the Inter-American Commission on Human Rights,
which opened file
No. 11.317. On 28 June 1994, the relevant parts of that communication
were transmitted to the Peruvian State.

36. On 8 July and 7 September 1994, the petitioners submitted
additional information, which was in due course transmitted to
the Peruvian State.

37. On 22 August 1994, the Peruvian State replied by sending
a Justice Ministry report on the status of the judicial proceedings
brought against
General Rodolfo Robles by the military courts.9 In this reports
conclusions, the State argued that the domestic remedies had not
yet been
exhausted and therefore requested that the case be filed, in accordance
with the terms of Articles 46 and 47 of the American Convention
on
Human Rights.

38. In a communication of 4 November 1994, the petitioner submitted
his comments on the Peruvian States reply. In this he claimed
that the
States reply offered no relevant information other than
a simple summary of the prosecution of General Robles and its
then state of reserved
judgment given that the accused was a prisoner in absentia. The
petitioner also noted that in its reply, the State did not argue
that domestic
remedies had not been exhausted and it provided no information
to refute the petitioners allegations regarding the events
described in his
submissions.

39. He also stated that the proceedings before military justice
were totally lacking in impartiality, in that the military court
was not independent,
thus constituting a violation of Article 8(1) of the Convention.
All the military court did was to endorse the charges against
General Robles. These
charges were based on the falsehood of the incidents he reported
and the innocence of the named individuals. Later judicial investigations
have
confirmed the truth of General Robless allegations, such
as the discovery of bodies in graves at Cieneguilla and Huachipa
(July and November
1993), the arrest of the perpetrators of those executions in November
1993, and their subsequent trial and conviction by the Supreme
Council of
Military Justices Court-Martial in February and March 1993.
At the close of his communication of 4 November 1994, the petitioner
expressed "his
interest in reaching a friendly settlement in this case."

40. On 14 December 1994, the Commission acknowledged receipt
of the petitioners comments on the States reply and
sent the relevant parts of
them to the State, granting it a period of 45 days to return its
comments.

41. On 21 August 1995, the petitioner submitted additional
information to the Commission, reporting that General Robles and
his two sons had been
granted amnesty under Law Nº 26.479. Amnesty Law Nº
29.479 benefited 52 members of the Police and the Armed Forces
who had been "convicted
and tried for the crimes of insubordination, making false statements,
undermining the nation, breach of trust, undermining the Armed
Forces , and
others." The petitioner stated, however, that the practical
effects of the amnesty law were restricted to judicial proceedings,
since the
administrative measures taken against General Robles under Supreme
Resolution 175 DE/EP remained in force.

42. In a note dated 5 September 1995, the State submitted a
list of the Police and Armed Forces personnel who benefited from
Amnesty Law No.
29.479, including General Robles. The Peruvian States response
made no reference to the possibility of a friendly settlement
as suggested by the
petitioner.

43. In 8 September 1995, a hearing in connection with this
case was held at the Commissions headquarters.

44. On 11 October 1995, the petitioner submitted additional
information about the threats to his life and person.

45. On 28 November and 3 December 1996, the petitioner submitted
additional details on the circumstances of his arrest by the Peruvian
army and
provided information on his trial by the military courts. He also
reported that his family had filed a writ for habeas corpus protection,
which could
not be carried out due to the opposition of the military authorities;
he stated that this recourse had ordered the immediate release
of General
Robles but, after due notification, had not been complied with
by the military authorities.

46. According to the petitioner, the military courts refused
to provide General Robless attorney with concrete information
on the reasons for his
arrest. The petitioner also reported that his attorney was punished
with a five-month suspension from practicing law for failure to
respect the
judges and magistrates of the military courts. This measure, according
to the petitioner, was intended to deprive General Robles of his
right to
counsel of his choice and to leave him defenseless in the judicial
proceedings brought against him.

47. On 4 March 1997, a second hearing on this case was held
at the Commissions headquarters. On this occasion, the petitioner
gave a succinct
account of the facts, starting with his denouncing the existence
of the Colina paramilitary group, after which the military authorities
threatened his
life and began criminal proceedings before the military courts
in retaliation for his revelations. These events, he said, forced
him into exile in
Argentina. He also described the events of his arrest on 26 November
1996, pursuant to an arbitrary arrest warrant issued under military
law, a
jurisdiction which lacks independence and impartiality. He noted
the ineffectiveness of the writ of habeas corpus, in that the
military officers
guarding him disobeyed the courts instructions to release
him, and he reported that it was impossible to take criminal action
against the individuals
who ordered and carried out his arbitrary arrest because a special
amnesty law had been enacted in their favor.

48. General Robles also stated that the administrative sanctions
ordered by Supreme Resolution 179-DE/EP of 10 May 1993, which
had taken away
his rights as a retired officer, remained in force; that in order
to annul that resolution, he had filed a writ of amparo protection
with the 18th Court
in Lima in October 1995. In November 1995 this request was admitted
for processing. However, this judicial decision was overturned
on appeal on 1
March 1996, under a ruling handed down by the Fourth Civil Circuit
of the Lima Superior Court. General Robles filed an extraordinary
appeal against
this latter ruling with the Constitutional Tribunal on 8 April
1996; since that time, his appeal has been awaiting resolution.

49. According to the petitioner, in Peru judicial remedies
are ineffective in that judicial decisions are not obeyed or their
processing is unwarrantedly
delayed; such is the case with amparo remedies which, by law,
must be resolved swiftly. For this reason, he maintains that in
Peru there are no
judicial remedies for protecting his rights that can be exhausted.

50. In turn, at the hearing the State repeated that General
Robless complaint was inadmissible because the domestic
remedies had not been
exhausted. It noted that the Constitution of the Republic of Peru
stipulates that a Peruvian citizen who believes that his rights
have been affected
must exhaust the constitutional protection mechanisms, such as
amparo and habeas corpus, before taking his case to a supranational
human rights
body. The State maintained that in the case at hand, the amparo
action brought by General Robles was still pending resolution
in that the
Constitutional Tribunal had not yet issued a final ruling. The
State also claimed that the arrest of 26 November 1996 and subsequent
events were
unrelated to the original complaint and should not be considered
by the Commission as a part of the case at hand.

51. On 9 October 1997, at 11:30 a.m., a third hearing on this
case was convened, at the request of the Peruvian State. Perus
representative
categorically rejected all the charges leveled by the petitioner.
The Peruvian State, he said, was accused of violating the right
to life, the right to
personal integrity, etc. All those rights were protected under
Peruvian law through habeas corpus and amparo actions. According
to the State, the
petitioner refused to comply with his new posting (the Inter-American
Defense Board in Washington, D.C.) and began attacking the Armed
Forces .
Even though he was retired, he was considered a soldier, and his
status as such had not ended; he was enjoying, for example, all
the benefits of
his pension. In light of these facts, the State requested that
the Commission declare the case inadmissible, since proceedings
under Peruvian law
had not been completed.

52. The petitioners representatives criticized the disrespectful
tone used by the State representative and the way in which he
referred to the
petitioner. According to the petitioners, General Robles reported
the existence of a death squad within the Armed Forces and, as
a result, he was
subjected to an intense campaign of defamation and he was deprived
of his personal freedom for revealing atrocious crimes perpetrated
by the
institutions set up to preserve public order. The campaign against
him began when he made certain statements against members of the
Armed
Forces and was forced to resign in violation of the regulations
covering such disciplinary measures. In spite of the regulations,
he was never called
or allowed to be heard by the Investigating Council, and it was
while he was in exile in Argentina that he was forced into retirement.
These
violations of due process deprived him of about one half of his
military retirement entitlements.

53. The Commission, in accordance with the procedure set forth
in the American Convention, invited the parties to begin negotiations
toward a
friendly settlement of the case. The parties agreed to consider
the proposal and to submit their replies immediately.

Friendly Settlement

54. Article 48(1)(f) of the American Convention states that
the Commission shall make itself available to the parties in order
to reach friendly
settlements in pending cases. In the case at hand, the petitioners
communication of 4 November 1994 indicated his interest in settling
the matter
on a friendly basis. That communication was transmitted to the
State for comments. Since no response was made regarding this
point, the
Commission assumed that the State had no interest in a friendly
settlement of this case. The offer of a possible friendly settlement
was again made
during the hearing held at the Commissions headquarters
on 9 October 1997. This offer was formally made by the Commission
to the Peruvian State
and the petitioners in a letter dated 10 October 1997, which requested
a reply by 14 October 1997. By means of a letter dated 13 October
1997,
the petitioners agreed to begin negotiations toward a friendly
settlement of the case and appointed two representatives in Washington
D.C.,--Mr.
José Miguel Vivanco of Human Rights Watch and Ms. Viviana
Krsticevic of CEJIL--for the purpose. In a note dated 14 October
1997 the Peruvian
State requested an extension of the reply period. The Commission
granted the extension but received no reply from Peru. The Commission
has
interpreted the States silence as a rejection of its offer
to begin proceedings for a friendly settlement.

IV. POSITIONS OF THE PARTIES

Position of the Petitioner

55. General Rodolfo Robles Espinoza alleges that in exercise
of his right of freedom of expression and in compliance with the
obligation to defend
human rights incumbent upon him as a public official, he named
the perpetrators of serious criminal acts, who were later brought
to trial and, in the
La Cantuta University case, convicted. As a result of those revelations,
he claims, he was subjected to an intense campaign of intimidation
by the
military authorities, which has made use of both military justice
and direct means.

56. Proceedings under military justice have been brought against
him for actions that cannot, in a democratic society, be considered
criminal acts.
General Rodolfo Robles claims that he faced charges on each occasion
on which he publicized the involvement of the military in criminal
actions. On
both occasions, the terms of amnesty laws were applied to him.
But, in his mind, this does not contradict his conclusion, but
rather shows that the
military justice proceedings were clearly in retaliation for his
revelations, aimed at preventing the existence of a paramilitary
apparatus in Peru--the
so-called Colina Group,-- which, according to his allegations,
involves officers from the highest echelons of the Peruvian military,
from becoming
public knowledge.

57. General Robles has stated that with the same aim, threats
have also been made through direct means consisting of surveillance,
harassment,
and threats. In addition, through arbitrary administrative sanctions,
he and his family have been deprived of the rights and benefits
to which all
retired generals are entitled. The guarantee contained in Article
5(3) of the American Convention, stating that punishments shall
not be extended
to any person other than the criminal, has been doubly violated,
in that an innocent person has been subjected to a punishment
that goes beyond
his person and is affecting his family.

58. The combined use of these techniques has kept General Rodolfo
Robles Espinoza and his family in a state of anxiety and apprehension.
The
threats against his life and his family and other acts of harassment
have been constant, and they pose a serious threat to the free
enjoyment of
his basic rights.

59. Ultimately, these threats are intended to persuade him
to desist from the legal action he has taken in order to restore
his good name, revoke
his enforced retirement, and recuperate the benefits he enjoyed
as a solider on active duty that he has lost, and, above all,
they are intended to
prevent him from continuing to make statements regarding the involvement
of top-ranking Peruvian army officers in the Barrios Altos and
La Cantuta
incidents.

Position of Peru

60. The Peruvian State, on the other hand, alleges that the
petition is inadmissible because its domestic law offers specific
remedies that General
Robles should have first exhausted. In this regard, Peru notes
Article 205 of its Constitution, which states that "once
domestic jurisdiction has been
exhausted, persons believing their constitutional rights to have
been affected may make recourse to the international courts or
agencies
established under treaties or pacts to which Peru is a party."

61. General Robless claim that international jurisdiction
is the last recourse given the absence of guarantees within domestic
law is, according to
the State, false, because Perus domestic legislation provides
suitable remedies for correcting the situation. Since these remedies
exist, it is
incorrect to maintain that the State has failed to provide mechanisms
for protecting the rights allegedly violated. The State points
out that General
Robles must previously exhaust the remedies set forth in Article
200 of the Constitution, to wit:

62. The Peruvian State notes that in the case at hand, General
Rodolfo Robles claims that his rights have been violated for allegations
he made in
connection with the La Cantuta and Barrios Altos incidents and
that the aim is to prevent those crimes from being investigated.
However, those
cases have already been duly investigated by the competent internal
judicial agencies and their perpetrators have been convicted.

63. According to the State, the criminal proceedings against
General Robles and his sons were not begun in retaliation for
his allegations against the
Peruvian army. On the contrary: according to the Government, the
case began with a complaint filed against General Robles with
the Court-Martial
Prosecutor, alleging he had committed a series of crimes against
the Armed Forces. Fear of criminal punishment was the real reason
why General
Robles fled Peru. According to the Government, the death threats
reported by General Robles are false and are simply intended to
discredit the
Armed Forces. Hence, the criminal proceedings did not simply begin
because of these allegations, but instead are related to criminal
acts committed
by General Robles.

64. On 7 May 1993 the proceedings began with the start of a
criminal trial, under Article 153, section 2, of the Code of Military
Justice, for the
crimes of insulting a superior, making false statements, dereliction
of duty, and other charges. The trial was prepared normally and
proceeded in
accordance with the provisions of military law. The Court-Martial
expanded the charges to cover additional crimes. In his final
report on the
investigation of the case, the Military Prosecutor concluded that
there was enough evidence to take the case to trial and to prosecute
General
Robles for the aforesaid crimes against the Armed Forces and for
insulting superiors in the persons of General Nicolás de
Bari Hermoza and Vladimiro
Montesinos. The advisor recommended referring the case to the
Prosecutor General, who drew up the corresponding charges. General
Robles was
given a court-appointed attorney; thus, according the Government,
he was ensured due process.

65. This was the state of the proceedings when the complaint
with the Commission was opened. Consequently, the State maintains
that domestic
remedies were not exhausted.

66. Perus Constitution guarantees human rights. When
events such as those General Robles was involved in occur, it
provides the necessary
guarantees for their protection. Since returning from Argentina,
General Robles has been fully participating in Perus public
life and has even
participated in its political life from within an opposition political
party. It can be stated that none of his rights have been denied,
restricted, or
limited. General Robless involvement in politics bears witness
to the freedom that exists in Peru.

67. In the case at hand, General Robles filed an amparo action
against Supreme Resolution 174, the administrative ruling that
ordered his
retirement. This recourse has not yet been decided on. Although
the Superior Court of Lima declared the action inadmissible because
it was brought
more than 60 days after the ruling was made (the Resolution was
issued on 10 May 1993 and was not challenged until October 1995),
the final
ruling to decide whether or not General Robless rights were
violated is still pending. In its reasoning the court explained
that the fact that a person
was outside the country did not prevent him from bringing an amparo
action. Under Peruvian law, amparo proceedings can be begun by
third
parties without the need for an express power of attorney. In
any event, all General Robles had to do was to enact a simple
power of proxy before
the Peruvian Consul in Argentina. Peruvian law allows for a series
of possibilities in this regard. The Court thus decided that General
Robles was in a
position to file the action and, therefore, accepted the State
representatives defense that the allotted period of time
had expired.

68. That resolution did not exhaust the remedies of domestic
law. General Robles himself has admitted that he filed the extraordinary
remedy
allowed for by Article 202, paragraph 2, of the Constitution,
which empowers the Constitutional Tribunal to hear appeals against
amparo rulings.
Article 45 of the Constitutional Tribunal Law establishes the
procedures for handling such remedies. Internal jurisdiction will
expire with a ruling from
the Constitutional Tribunal, but no such ruling has yet been given.

69. The petitioner resorted to supranational jurisdiction before
exhausting the remedies offered by domestic law. The request has
been processed
simultaneously under both domestic and supranational jurisdictions,
thus contravening the principle that supranational jurisdiction
is supplementary
to the domestic arena. In consideration of all this, the Peruvian
State requests that the Commission declare the complaint to be
inadmissible.

V. ANALYSIS

A. ADMISSIBILITY

70. In accordance with the background described above, the
Commission is competent to hear this petition, since the complaint
concern facts that
constitute possible violations of the human rights of General
Robles as set forth in the American Convention on Human Rights.
Peru has been a
State Party to the Convention since 28 July 1978.

71. The Commission holds the arguments regarding inadmissibility
proffered by the Peruvian State to be inadmissible and believes
that the petition
meets the requirements set forth in Article 46 of the American
Convention. The Commission also believes that none of the exceptions
contained in
Article 47 are applicable in this case.

Exhaustion of Domestic Remedies

72. With regard to the exhaustion of domestic remedies, the
Peruvian State has said that General Robles has not exhausted
the remedies of
domestic law set forth in the Constitution and other laws. In
this regard, in its communication of 22 August 1994, the Peruvian
State simply offered
a summary of the trial before the military criminal courts, without
expressly identifying the appropriate and effective domestic remedies
available to
General Robles for protecting his rights. Irrespective of the
foregoing, the State later said that General Robles had to exhaust
the remedies set
forth in Article 200 of the Peruvian Constitution.

73. At two different times, the Peruvian State has taken legal
action of different kinds. Initially, the State reported, criminal
action was taken
against General Robles for crimes including insubordination, insulting
a superior, and undermining the Armed Forces; the corresponding
proceedings
were begun by the Prosecutor of the Supreme Council of Military
Justices Court-Martial on 7 May 1993.

74. These proceedings began a few days after General Robles
obtained political asylum in Argentina and arose from his statements
regarding the
armys involvement in a death squad known as the "Colina
Group." The trial before the military courts was intended
to punish him with a 15-year
prison term and the payment of USD $4,500,000 as reparations for
alleging the involvement of the Armed Forces in setting up a death
squad known
as the Colina Group. The Commission believes that General Robles
did not have effective remedies for refuting the military charges
brought against
him.

75. In addition, the Commission must bear in mind two issues
regarding the action brought by the Peruvian State:

a. First, this criminal trial was dismissed by applying an
amnesty law. This prevented a final ruling on General Robless
guilt or
innocence and, above all, on the possible use of criminal proceedings
to punish public allegations of human rights violations committed
by the army. Regardless of the legitimacy or illegitimacy of the
charges made against General Robles, the amnesty law prevented
him
from seeing the trial through to its conclusion and from fully
asserting his right of defense. Under these circumstances, the
dismissal of
the proceedings prevented General Robles and his sons from refuting
the criminal accusations made against them and, in so doing,
clearing their names and reputations.

b. Second, the Commission notes that criminal proceedings do
not serve to rectify other rights that General Robles alleges
were
violated. Indeed, in addition to his arbitrary subjection to a
trial before the military courts, General Robles reported other
attacks on his
rights, such as the arbitrary emission of a resolution ordering
his retirement and depriving him of the pension and other entitlements
earned over long years of service in the army, and the existence
of a campaign waged by the Armed Forces to discredit him within
both
the army and society at large. In this regard, the action initially
taken by the Peruvian State (the criminal trial before the military
courts) was not designed to protect him from these other rights
violations.

76. The Peruvian State also noted that General Robles was obliged
to exhaust the remedies set forth in Article 200 of the Constitution
before filing
his complaint with the Commission. Article 200 provides for the
following remedies: habeas corpus actions, amparo proceedings,
habeas data
actions, unconstitutionality suits, popular actions, and actions
of compliance.

77. Some of these remedies, such as class actions or or challenge
to the constitutionality, can be disregarded immediately, since
private citizens
are not empowered to initiate them. Thus, Article 200, paragraph
4, states that:

A challenge to the constitutionality may be brought against
provisions at the level of laws: Laws, legislative decrees, emergency
decrees, treaties,
congressional regulations, regional rules of a general nature,
and municipal ordinances that contravene the form or substance
of the Constitution.

78. Article 203 of the Peruvian Constitution clearly states
that only the following persons are empowered to file challenge
to the constitutionality
action:

1. The President of the Republic.
2. The Attorney General.
3. The Peoples Defender (Ombudsman).
4. Twenty-five percent of the total number of members of Congress.
5. Five thousand citizens with signatures checked by the National
Elections. Municipal ordinances may be
challenged by one percent of the citizens of the corresponding
district, provided that this percentage does not
exceed the number of signatures indicated above.
6. The regional presidents with the agreement of the Regional
Coordination Council, or the provincial mayors
with the agreement of their Council, with regard to matters of
their competence.
7. Professional associations.

79. General Rodolfo Robles lacks the authority to bring action
challenging the constitutionality of laws and legal provisions
that affected his rights,
since Peru allows such class action suits. It is therefore a remedy
not available to individuals, nor one which they can individually
exhaust.

80. Habeas data actions are another remedy which, in the case
at hand, General Robles is not obliged to exhaust, because it
is not suitable for
rectifying the alleged violations. Habeas data actions have been
incorporated into Perus Constitution as a mechanism "admissible
against an action
or failure to act by any authority, officer, or person that violates
or threatens the rights referred to in Article 2, paragraphs 5,10
6,11 and 712 of
the Constitution"namely, the right to obtain information
from the State, and the right to privacy and honor.

81. Consequently, the only remedies that can be considered
suitable and available to the petitioner are amparo and habeas
corpus.

82. With regard to amparo proceedings, General Robles filed
a request for Supreme Resolution 179, which ordered his retirement,
to be declared
unconstitutional. These proceedings began in November 1995. The
request has not yet been finally ruled upon, however, although
it is currently on
appeal under an extraordinary remedy filed with the Constitutional
Tribunal and has been since April 1996. Article 46(2)(c) of the
American
Convention states that domestic remedies need not be exhausted
when unwarranted delays such as this have taken place.

83. An amparo suit is a constitutional guarantee that protects
individuals from serious human rights violations. It is, therefore,
a remedy that must
be processed swiftly, to protect the affected rights as promptly
and as effectively as possible. When an amparo suit or proceeding
drags on
without reaching a final conclusion, it ceases to be an effective
remedy. Article 25 states that: "Everyone has the right to
simple and prompt
recourse." Amparo proceedings cannot be prolonged unreasonably
without a prompt final resolution. Thus, the Commission has to
conclude that
General Robles is not required to await the Tribunals ruling
on this remedy before requesting the protection of the inter-American
human rights
system. Since in this case final judgment on the amparo suit has
not been "prompt," the Commission holds that there has
been an "unwarranted
delay" in the exhaustion of the domestic remedies, in violation
of Article 46(2)(c).

84. As the Inter-American Court of Human Rights has stated,
"The rule of prior exhaustion must never lead to a halt or
delay that would render
international action in support of the defenseless victim ineffective."
(Godínez Cruz Case, Preliminary Objections, Judgment of
26 June 1987,
paragraph 95.)

85. Finally, the State has named habeas corpus as a remedy
available to General Robles for rectifying some of the alleged
violations, specifically his
arrest on 26 November 1996. This remedy, the Commission believes,
proved ineffective in protecting General Robless right to
freedom.

86. General Robless family did in fact initiate such
a remedy when he was arrested by the Armed Forces. The judge in
charge of the case reported
to the Real Felipe Barracks, where General Robles was being held.
The Armed Forces then prevented the judge from entering that military
prison,
and so she was unable to verify General Robless situation.

87. The judge then issued a final ruling, granting the habeas
corpus and ordering the immediate release of General Robles. The
Armed Forces
refused to receive the notification of this ruling or to comply
with the Court order. The above leads to the conclusion that habeas
corpus remedies
are ineffective in Peru. Members of the Armed Forces refuse to
obey judicial orders, and they suffer no negative legal repercussions
or punishments
for failing to comply with them. Given these circumstances, the
remedies are completely ineffective in protecting General Robless
rights, since the
official authorities do not abide by the decisions of the judiciary.
The Commission believes that the Peruvian State has violated Article
25(2) by
means of the military courts failure to comply with the
habeas corpus ruling.

88. From the above facts, the Commission concludes that in
the case at hand, in accordance with Article 46(2), General Robles
is not required to
exhaust the domestic remedies since the Peruvian States
domestic legislation lacks a procedure for protecting violated
rights. In addition, with
regard to the only two remedies apparently applicable to the case
and available to the petitioner, the amparo proceedings were delayed
for an
unreasonably long period of time while the habeas corpus action
was not effective in that the Armed Forces refused to comply with
the order to
release General Robles.

B. ANALYSIS OF THE MERITS

The Proven Facts

89. In the case at hand, the Commission has to determine whether
acts of harassment and intimidation were carried out by authorities
of the
Peruvian State against General Robles and his family. According
to the complaint, this harassment began in May 1994, when the
Armed Forces
threatened his life, and started of criminal proceedings against
him for the crimes of undermining the Armed Forces, insubordination,
insulting a
superior, and others, that finally led to his arrest on 26 November
1996, ordered by the Military Prosecutor for those same crimes.

90. The Commission notes that the military courts began proceedings
against General Robles on two occasions as a result of his revelations
regarding the crimes committed by the military in the Barrios
Altos and La Cantuta incidents. In the Commissions view,
it is unreasonable to take
criminal action against someone for denouncing the participation
of high-ranking military officers in a series of crimes and massacres
perpetrated
against civilians or for making public declarations naming the
persons involved. Moreover, the Peruvian State arbitrarily deprived
him of his right to a
pension and other benefits to which he was entitled as a general
in active service.

91. The Commission therefore believes that the State has displayed
an attitude of arbitrariness, "which constitutes an abuse
of power"13 reflected
in the unquestionable persecution and harassment of General Robles.
The Peruvian military authorities, instead of thoroughly and objectively
investigating General Robless allegations, simply dismissed
them and launched a campaign of harassment in order to silence
him.

92. The Commission believes that public officials are obliged
to report on crimes of which they become aware as they perform
their duties.
Compliance with a legal obligation can make no such revelation
illegal.

93. In light of the foregoing, the petitioner has requested
the Commission to rule that Peru has violated, in respect of General
Rodolfo Robles, the
rights enshrined in Articles 5, 7, 8, 9, 11, 13, 25, and 1(1)
of the American Convention on Human Rights.

The Right to a Fair Trial and Judicial Protection

94. Articles 8 and 25 of the American Convention on Human Rights
grant all persons the right of access to remedies, to be tried
and heard in judicial
proceedings, and to receive a ruling handed down by a competent
authority.

Article 8 of the American Convention on Human Rights states
that:

1. Every person has the right to a hearing, with due guarantees
and within a reasonable time, by a competent,
independent, and impartial tribunal, previously established by
law, in the substantiation of any accusation of a criminal
nature made against him or for the determination of his rights
and obligations of a civil, labor, fiscal, or any other
nature.

95. In the case at hand, the officers of the Peruvian Armed
Forces issued Supreme Resolution No. 179 DE/EP on 10 May 1993,
ordering the
"retirement on disciplinary grounds" of General Rodolfo
Robles.

96. The actions for which this administrative sanction was
imposed on General Robles occurred on 5 May 1993, and the resolution
was issued on 10
May 1993. This means that the entire administrative disciplinary
process was concluded in five days. It should also be noted that
General Robles
went into exile, seeking political asylum, on 7 May 1993 on account
of the threats and harassment he was suffering.

97. General Robles was neither summoned nor heard at the disciplinary
proceedings, and therefore, he did not have the opportunity to
defend
himself before being punished. He was thus denied any possibility
of defending himself against the charges made against him, in
violation of Article 8
of the American Convention on Human Rights. The Commission interprets
the right to defense as including the basic rights of due process
set forth
in Article 8(2), such as the accuseds right to be presumed
innocent until his guilt is proven, his right to receive prior
notification of the charges
against him, his right to adequate time and means for preparing
his defense, the right to defend himself personally or to be assisted
by legal counsel
of his own choosing, etc.

98. The brevity of the proceedings, together with the fact
that General Robles was not given a hearing, demonstrates to the
Commission that the
disciplinary process brought against General Robles to force him
into retirement as a disciplinary measure was carried out without
observing the
right to due process enshrined in Article 8. Peru is therefore
responsible for violating Article 8 of the Convention by removing
General Robles from
active service and depriving him of the entitlements and benefits
attached thereto without respecting the rules of due process and
the right of
defense.

99. The Commission must now examine the reasons or pretexts
behind the criminal trial brought against General Robles for the
crimes of
insubordination, insulting a superior, undermining the Armed Forces,
abusing authority, making false statements, dereliction of duty
to the detriment
of the Peruvian State and army, and crimes against military honor,
decorum, and duty--he proceedings which forced General Robles
to seek political
asylum in Argentina. This trial ended with the terms of the amnesty
law being applied to General Robles. Subsequently, the military
courts brought
another action against him on 26 November 1996 for undermining
the Armed Forces.

100. As stated in the complaint and confirmed in the documents
submitted by the State, the military courts began criminal proceedings
against
General Rodolfo Robles Espinoza for the crimes of insulting a
superior and undermining the Armed Forces by revealing the participation
of certain
Armed Forces officers in the commission of different criminal
acts.

101. The criminal trial of General Robles before the military
courts began without there previously being an exhaustive investigation
of the
truthfulness or falsehood of his allegations, as required by law.
Moreover, the proceedings continued after the claims made by General
Robles were
proven to be true. Effectively, his allegations were confirmed
at trial in the La Cantuta case, which proved the guilt of the
officers he had named as
the perpetrators of that crime. In the Barrios Altos case, as
a result of his allegations the investigations began and the perpetrators
were identified.
Consequently, it can be deduced that General Robless allegations
were neither false nor unfounded. Exercising a right or complying
with a legal
duty cannot make an action illegal.

102. In any event, in a democratic society, revealing criminal
acts--particularly when they involve human rights violations committed
by state
officials--cannot lead to criminal prosecution. Criminalizing
allegations about human rights violations is a means of repressing
the victims and those
individuals who defend human rights and strive to keep checks
on abuses committed by the States security forces. When
a state refuses to
conduct an investigation into such allegations and makes no effort
to establish the truth of the matter, preferring instead to prosecute
those who
made the allegations, it is violating its duty to investigate
the reported crimes and, in general, to protect human rights.

103. By reporting the security forces involvement in
a series of crimes, General Robles was performing his duty as
a citizen, as an officer in the
army, and as a public employee. State authorities in a democratic
society are obliged to protect and monitor respect for human rights.
The
democratic rule of law sought by the inter-American system is
essentially based on the concepts of human dignity, controlling
public power, and
absolute respect for human rights. All public officials are obliged
to defend those values.

104. This gives rise to an obligation, incumbent on each and
every public official, to use all the means available to him to
denounce the criminal
acts of which he becomes aware. General Robles exercised the right
of defense in favor of third parties, which is legal. Such a defense
is legitimate
when it defends either ones own rights or those of a third
party; this appears in any penal code. It is therefore a licit
activity by the individual,
who can only be guilty of "excesses" when, for example,
he uses means that are not commensurate with that goal; but there
is no question of that
in the case at hand. In turn, the State is duty-bound to investigate
serious crimes as soon as such allegations are made. In this regard,
the
Inter-American Court of Human Rights has stated that:

The State has a legal duty to (. . .) use the means at its
disposal to carry out a serious investigation of violations committed
within its jurisdiction,
to identify those responsible, to impose the appropriate punishment
and to ensure the victim adequate compensation. (Velásquez
Rodríguez Case,
Judgment of 29 July 1988, paragraph 174.)

105. There is no argument the State can use to avoid its duty
of investigating a case that involves the violation of basic human
rights. This has
been stated by the Court in the following terms: the investigation
"must be undertaken in a serious manner and not as a mere
formality preordained
to be ineffective. An investigation must have an objective and
be assumed by the State as its own legal duty, not as a step taken
by private
interests that depends upon the initiative of the victim or his
family (. . .), without an effective search for the truth by the
government. (Ibid.,
paragraph 177).

106. The obligation of investigating human rights violations
also includes the obligation of guaranteeing that the victims,
denouncers, witnesses,
and their lawyers do not suffer reprisals or negative repercussions
after reporting crimes committed by public officials.

107. In bringing criminal proceedings against General Robles
for his revelations, the Peruvian State violated its obligation
of respecting and
protecting human rights, in that it directly threatened the persons
who reported a violation of basic rights--in other words, a person
exercising his
right to defend a third party using means suitable for that purpose.

108. It can thus be concluded that General Robles was arbitrarily
made to face criminal proceedings before the military courts in
retaliation for
revealing the involvement of officers of the Peruvian Armed Forces
in criminal acts, which constitutes an "abuse of power"
harmful to General
Robless rights. Similarly, although the exact motive for
the criminal charges cannot be determined, it is obvious that
the campaign of harassment
against General Robles is real. In another similar case, the Commission
established that:

Though petitioners have asserted that the campaign of persecution
is prompted by the Generals complaints of acts of corruption
and violation of
human rights by the Mexican Army, their argument of the violation
of his right to freedom of expression and of the other rights
alleged to have
been violated springs from the harassment to which General Gallardo
is being subjected. In its preliminary report the Commission said
nothing
about the motives behind this campaign because they could have
been various and are insufficiently clear, but it did find sufficient
proofs that the
campaign of persecution and harassment of the General is real.14

109. The criminal proceedings against General Robles thus constitute
an abuse of power. Again quoting from the precedent in the Gallardo
case, the
Commission determined that "the fact that 16 proceedings
have been opened, some of which have been closed and others dismissed,
is evidence of
an unreasonable succession of cases, which taken together constitute
an abuse of power, with the intent of maintaining
constant proceedings
against General Gallardo, thereby depriving him of his personal
liberty and violating other human rights as established by this
Commission."15 The
Commission analyzed this concept of abuse of power in detail,
quoting Alibert as follows:

An agent of the administration commits an abuse of power when,
in performing an act within his competence and respecting the
forms imposed by
legislation, he makes use of his power in cases, for motives and
to purposes other than those for which this power was conferred
upon him. The
abuse of power is an abuse of mandate, an abuse of law. An administrative
act may have been performed by the competent official with all
the
appearances of legality and yet this discretionary act, which
the qualified official had the strict right to perform, may be
rendered illegal if its author
has used his powers for a purpose other than that for which they
were conferred on him, or to speak in terms of jurisprudence,
for a purpose other
than the public interest or the good of the service.16

110. In these circumstances, a criminal trial under military
jurisdiction does not offer the minimum guarantees of due process
needed to ensure
exercise of the right of defense. This criminal trial was not
aimed at determining whether or not General Robles was guilty
of a criminal act. The
criminal case was directly intended to harass General Robles for
having made his claims and thus intimidate him into refraining
from a continued
investigation of the involvement of Peruvian military officers,
operating as a death squad, in the La Cantuta and Barrios Altos
massacres.

111. Consequently, the authorities attempted to conduct a criminal
prosecution against General Robles in such a way as to make it
impossible for
him to defend himself. With this goal, the military courts
Investigating Magistrate suspended General Robless defense
counsel from practicing law
before those courts for a period of five months. By doing so,
the military courts deprived General Robles of his right to defense
counsel of his own
choice and to a competent tribunal, thus contravening Article
8 of the Convention.

112. The fact that both General Robless criminal proceedings
were ultimately dismissed under different amnesty laws does not
affect the above
conclusion. On the contrary, by preventing the proceedings from
following their normal course until totally concluded, they prevented
the
competent courts from handing down a final ruling, thus denying
General Robles the possibility of taking legal action against
the judicial officers who
acted by abusing their power and in contravention of legal process.

113. This demonstrates that military justice has posed a constant
threat to General Robless security, in that it has kept
him expecting fresh
criminal charges to be filed against him. In this way, military
justice is wielded as a tool of arbitrary repression against any
person who reports its
crimes or abuses of power. Consequently, the standard of reasonableness
is violated through excesses or abuses of power.

114. The fact that a number of criminal cases were begun, that
there was a series of trials followed by the promulgation of amnesty
laws, and that
all these affected the same person leads the Commission to assume
that the right to the presumption of innocence, enshrined in Article
8(2) of the
American Convention, was violated through the use of the organs
of military justice.17

115. Article 25(1) of the American Convention states that:

Everyone has the right to simple and prompt recourse, or any
other effective recourse, to a competent court or tribunal for
protection against acts
that violate his fundamental rights recognized by the constitution
or laws of the state concerned or by this Convention, even though
such violation
may have been committed by persons acting in the course of their
official duties.

116. The American Convention requires States to offer effective
recourse to the victims of human rights violations. In the case
at hand, General
Robles has not been given such a recourse to protect him from
the intimidation and harassment which he has suffered and continues
to endure.

117. General Robles has, in fact, invoked a series of remedies
to protect himself from the arbitrary acts committed by the military
authorities and
courts. These include the filing of an amparo action in November
1995, to annul the disciplinary measure forcing him into retirement
imposed by
Supreme Resolution 175, and to restore the rights he was consequently
denied, and the bringing of a writ of habeas corpus to regain
his freedom
when he was arbitrarily arrested by the Armed Forces in November
1996.

118. With the amparo action, the final ruling has been delayed
excessively in spite of the seriousness of the resolution it challenges--namely,
the
imposition of a disciplinary measure in violation of all the guarantees
of Article 8 of the Convention and of the Peruvian Constitution
itself.

119. In this regard, it should be noted that the fact that
a disciplinary decision is handed down through an administrative
procedure in no way
affects the States obligation of observing the rules of
due process. On the contrary, in cases of administrative procedures
involving the loss of
rights, not only is the State obliged to implement the administrative
procedure in which all the guarantees of Article 8 are observed,
it is also
obliged to supply effective legal remedies for the courts to review
the actions of the public administration.18

120. As the Commission sees it, there can be no doubt that
General Robless situation when Supreme Resolution 174 was
issued prevented him from
exercising any defense or bringing any administrative or judicial
appeal to revoke it. This was in contravention of the commitment
assumed by the
State under Article 25(2)(b) of the American Convention:

The States Parties undertake: (. . .) to develop the possibilities
of judicial remedy.

121. The death threats made against him and the criminal prosecutions
brought by the military courts constituted adequate and justified
reason for
General Robles to feel forced to leave Peru in order to protect
his life and person. In the Commissions view, it has been
fully shown that the
Peruvian army launched a campaign of harassment and intimidation
against General Robles, which prevented him from making use of
the remedies
offered by Perus domestic legislation. The Peruvian State
therefore, is responsible for violating its obligation of guaranteeing
access to justice and
of developing the possibilities of simple and prompt judicial
remedies before the courts.

122. Although General Robles was able to return to Peru in
October 1995 and file amparo proceedings, the Commission must
note that:

a. First, the intimidation and harassment of General Robles
continued through direct means, in the form of telephone
threats, permanent surveillance of his home, and his being followed
by individuals with ties to the security forces. This
harassment increased when he began the amparo proceedings.

b. Second, amparo is a "simple and prompt" recourse
for protecting basic rights. Its aim is to restore to a citizen
the full
use and enjoyment of rights violated by arbitrary acts committed
by official bodies.

123. The Commission thus holds that the right to a simple and
prompt recourse set forth in the Convention requires a decision
to be made within a
"reasonable time" in accordance with the nature and
purpose of such a remedy. When the final result of a decision
is delayed for more than a year
and a half, it must be concluded that the State has not provided
the affected person with a simple and prompt recourse, thus violating
his right to
judicial protection.

124. In this regard, Article 25(2)(a) of the Convention states
that:

The States Parties undertake to ensure that any person claiming
such remedy shall have his rights determined by the competent
authority provided
for by the legal system of the state.

125. Similar comments could be made with regard to the habeas
corpus action brought in General Robless favor after his
arrest on 26 November
1996. Although the judicial authorities reported almost immediately
to the Real Felipe General Barracks, where General Robles was
being held, in
order to carry out the habeas corpus order, the military authorities
refused them access to their facilities to check on his physical
state. Later,
when the judicial authorities declared General Robless arrest
to be arbitrary, the military authorities refused to receive the
notification of that
resolution or to carry out the Court order.

126. Article 25(2)(c) stipulates that States shall guarantee
enforcement, by the competent authorities, of all decisions in
which remedies are
accorded.

127. In the case at hand, the judicial authorities ordered
General Robles to be released. The military authorities openly
disobeyed that order.
General Robless arrest, as an arbitrary and illegal act
carried out by the military authorities, gave rise to criminal
responsibility. In the resolution,
the judicial authorities ordered proceedings to begin against
the members of the military who ordered the arrest. This judicial
resolution was also
disregarded, in that the officers involved in the arbitrary arrest
of General Robles and the arbitrary proceedings brought against
him were able to
benefit from an ad hoc amnesty law.

128. The Commission concludes that on different occasions,
General Robles attempted to use constitutional actions and remedies
to protect his
rights and, even when those remedies were declared admissible,
the competent military authorities either openly disregarded the
judicial decisions
or delayed the final decision indefinitely. In any event, those
remedies have proven to be completely ineffective in protecting
the victims basic
rights. As a result, the Commission declares that the Peruvian
State has violated the right of judicial protection enshrined
in Article 25(2) of the
Convention, in respect of General Rodolfo Robles Espinoza, through
the military courts failure to comply with the habeas corpus
ruling.

The Right to Personal Freedom

129. Article 7(2) of the American Convention stipulates that
no one shall be deprived of his physical liberty except for the
reasons and under the
conditions established beforehand by the constitution of the State
Party concerned or by a law established pursuant thereto. Article
7(5) of the
Convention states that: "Any person detained shall be brought
promptly before a judge or other officer authorized by law to
exercise judicial power
and shall be entitled to trial within a reasonable time or to
be released without prejudice to the continuation of the proceedings."
The detainee must
be brought without delay before the judicial authorities. His
detention may not exceed the time needed for transportation.

130. According to Article 2(20)(f) of the Peruvian Constitution:

No person may be arrested except by a written, substantiated
order from a judge or, in cases of flagrante delicto, by the police.
The detainee must
be referred to the corresponding court within 24 hours or within
the time imposed by the distance involved.

Paragraph 14 of Article 138 states that:

The principle of not being denied the right of defense at any
stage in proceedings. All persons shall be immediately informed
in writing of the
cause or reasons for their arrest. They shall be entitled to personal
communications with a defense attorney of their choosing and to
receive advice
from that attorney from such time as they are summoned or arrested
by any authority.

131. The Peruvian Constitution clearly empowers the police
to arrest a person, but only in cases of flagrante delicto. When
this does not apply, a
"written, substantiated order from a judge" is required.

132. General Robles was arrested on 26 November 1996, without
being shown a written, substantiated order from a judge. Not only
was he not
shown this order; his defense attorney was not allowed to see
it when he began to investigate the reasons for General Robless
arrest.

133. In any event, the order for his arrest was issued by an
incompetent court, as resolved by the civilian judicial authorities
that ruled on the
habeas corpus action in General Robless favor.

134. Under Article 173 of the Peruvian Constitution, the terms
of the Code of Military Justice are not applicable to civilians,
except in cases
involving the crimes of treason against the fatherland or terrorism.
General Robles had been retired, and therefore, was not an active
member of the
Armed Forces or subject to military jurisdiction or the Code of
Military Justice. In this regard, Judge Elba Greta Minaya Calle
declared that:

Since General Rodolfo Robles Espinoza has the status of a retired
general and as such is not subject to military jurisdiction as
stipulated by Article
12 of Legislative Decree No. 752, the Military Status Law, which
states that: "Only officers in active duty or reserve are
subject to the scope of the
Code of Military Justice . . ." but not those who are retired,
as indicated by Article 70 of the same Legislative Decree, which
states that: "Retired
officers shall exercise their rights and obligations in accordance
with the Constitution, with no limitations whatsoever," a
provision that is
incompatible with the principle that military justice can be neither
extended nor renounced."19

135. Based on the above facts, Judge Elba Greta Minaya Calle
reached the conclusion that in General Robless case, the
constitutional provision
stating that no person may be arrested without a written, substantiated
order from a judge was not observed, "in light of the refusal
of the military
authorities to provide the necessary information." She therefore
admitted the habeas corpus action and declared that Articles 2.24(f),
2.24(h), and
139.3 of the Peruvian Constitution had been violated. This ruling
was upheld on appeal.

136. In addition to the military courts lack of competence
to order the arrest of General Robles, the Commission cannot remain
silent regarding the
existence of an arbitrary criminal prosecution, intended to intimidate
and silence him, which constitutes an "abuse of power."

137. The resolution of the Investigating Magistrate of the
Supreme Council of Military Justice of 29 November 1996, given
during case 5296-102,
states in its first reasoning clause that the accused Rodolfo
Robles:

In his capacity as a Retired Army General, since his return
to the country on 17 June of last year, in spite of having benefited
from the effects of the public amnesty law, has been making public
declarations containing defamatory phrases to the detriment of
our Armed Forces; declarations made with the clear aim of undermining
the prestige, morale, and discipline of the Peruvian Army. Thus,
referring to the Armys actions in the CENEPA, he states
that: "What happened at the CENEPA was not a relaxation
of morale, because there have been acts of great heroism; instead,
it was an extension of corruption," "The truth is that
we have not won. At least we have not had the overwhelming victory
of 1981," "not only crimes against civilians are being
covered up, but also crimes within the army," ". .
. and so our army is increasingly inefficient, and those are
the results of the CENEPA," as can be seen in APRODEH magazine,
on pages 11 and 12 of the proceedings. In the same tone he has
referred to General Nicolás de Bari Hermoza Rios, Commander
in Chief of the Army and Chairman of the Armed Forces Joint Chiefs
of Staff, saying that: "The values that have invariably
guided our army are being enormously distorted; this is perhaps
the greatest harm being done to it by Fujimori and Hermoza, who,
in their urge to attain personal goals, are taking the institution
along other paths," as published in La República
magazine on 28 January 1996, appearing on pages nine and ten
of the proceedings. These declarations violate the terms of Articles
142 and 147 of the Military Code, constitutingthe crime of insulting
a superior wherein the military situations of the injured party
and his aggressor are irrelevant, and, in addition, the accuseds
insulting, offensive, and untruthful phrases undermine discipline
and order among the members of the Army by affecting the position
of a superior vis-à-vis his subordinates . . . (emphasis
added).

138. The Commission concludes that the act of depriving General
Robles of his freedom was ordered by the military courts with
a purpose other
than those set forth in legislation, with which they exceeded
their legal powers and contravened the express provisions of the
Constitution. Said
act was therefore a violation of General Rodolfo Robless
right to personal freedom as set forth in Article 7 of the American
Convention.

Right to Protection of Honor and Dignity

139. Article 11 of the American Convention states that:

1. Everyone has the right to have his honor respected and his
dignity recognized.

2. No one may be the object of arbitrary or abusive interference
with his private life, his family, his home, or his correspondence,
or
of unlawful attacks on his honor or reputation.

3. Everyone has the right to the protection of the law against
such interference or attacks.

140. The petitioner has stated that there have been actions
and campaigns to discredit and libel General Robles at the national
level, among all the
members of the army and public opinion, by displaying and distributing
fliers, documents, letters, photographs, and biased and false
declarations in
the press and on radio and television.

141. One example of this in an insulting poster (showing a
doctored photograph of General Robles in convicts garb)
that was authorized by the
Commander in Chief of the Army and distributed around all Perus
military barracks at the end of May 1993.

142. On 10 May 1993, 53 army generals signed an open letter
that was distributed to the main media outlets, saying:

That Major General Rodolfo Robles Espinoza has, through his
felony and cowardice, dishonored the uniform bestowed on him by
the Nation and
that therefore, regardless of his criminal punishment, must be
considered unworthy of belonging to the Peruvian Army and of bearing
the noble
decorations that the Nation has granted to him and must be expelled
from the institution and removed from the ranks of Army officers.

143. From the above, the Commission notes that it has been
fully documented that authorities of the Peruvian State made statements
and issued
declarations naming General Robles as guilty of betraying the
Peruvian army and discrediting the Armed Forces by reporting the
involvement of
several ranking military officers in crimes and human rights violations.
The way in which General Robles has been denigrated, the fact
that he has
been called a liar, a coward, and a traitor, the drawings and
posters ridiculing his image, as contained in the documents, are
an affront to General
Robless dignity and honor in that they have directly harmed
his name and reputation, particularly so when the criminal proceedings
brought against
him concluded with the application of amnesty laws and when the
allegations made by General Robles have been duly proven by the
competent
judicial authorities. The campaign to discredit General Robles
also shows that power has been abused in the campaign of public
harassment waged
against him to sully his name among the general public and within
the Armed Forces.

144. From the foregoing it is concluded that the Peruvian State
violated General Robless right to dignity and honor as enshrined
in Article 11 of the
American Convention.

Right to Freedom of Thought and Expression

145. In this case, the petitioner has claimed that the main
objective of the attacks on General Robles was to curtail his
freedom of expression and
thought, in contravention of Article 13 of the Convention,20 in
order to prevent him from stating his position regarding the violation
of human rights
by the Armed Forces.

146. Thus, in connection with his revelations regarding the
existence of a death squad called the Colina Group, comprising
members of the National
Intelligence Service and of the Armed Forces, the Court-Martial
of the Supreme Council of Military Justice began proceedings against
Major General
Rodolfo Robles Espinoza for the crimes of insubordination, insulting
a superior, undermining the Nation and the Armed Forces, abusing
his authority,
making false statements, and dereliction of duty. These criminal
proceedings began only two days after his allegations against
the Armed Forces
were published.

147. The Investigating Magistrate of the Supreme Council of
Military Justice ordered the capture and subsequent definitive
arrest of General Robles
for having made statements slandering the Armed Forces. The phrases
deemed slanderous included ". . . not only crimes against
civilians are being
covered up, but also crimes within the army" and the claim
that there was corruption within the Peruvian Army.

148. In the Commissions view, the exercise of the right
of freedom of thought and expression within a democratic society
includes the right to not
be prosecuted or harassed for ones opinions or for ones
allegations about or criticisms of public officials. As the Commission
has established in
another case, reasonable limits can be placed on the freedom of
expression of members of the Armed Services on active duty in
a democratic
society.21 The right of free expression also includes the right
to analyze critically and to oppose. This protection is broader,
however, when the
statements made by a person deal with alleged violations of human
rights. In such a case, not only is a persons individual
right to transmit or
disseminate information being violated, the right of the entire
community to receive information is also being undermined.

149. As the Inter-American Court of Human Rights has stated
in connection with Article 13:

Those to whom the Convention applies not only have the right
and freedom to express their own thoughts but also the right and
freedom to seek,
receive and impart information and ideas of all kinds. Hence,
when an individuals freedom of expression is unlawfully
restricted, it is not only the
right of that individual that is being violated, but also the
right of all others to "receive" information and ideas.
The right protected by Article 13
consequently has a special scope and character, which are evidenced
by the dual aspect of freedom of expression. It requires, on the
one hand,
that no one be arbitrarily limited or impeded in expressing his
own thoughts. In that sense, it is a right that belongs to each
individual. Its second
aspect, on the other hand, implies a collective right to receive
any information whatsoever and to have access to the thoughts
expressed by others.
(Advisory Opinion OC-5/85 of 13 November 1985, paragraph 30.)

150. The Commission concludes that in this case, the organ
of the military justice have been used to repress General Robless
opinions and
denunciations regarding serious human rights violations committed
by ranking military officers.

151. It can, therefore, be stated that, in the case at hand,
the Military Justice system has been used to repress criticisms,
opinions, and
denunciations about the actions of its officers and the crimes
they have committed. In this, the Mlitary Justice system has made
particular use of
the crimes of undermining the Armed Forces and of insulting a
superior, holding that allegations of criminal acts constitute
"slanderous phrases" or
"insults." The Commission believes that undermining
the Armed Forces or insulting a superior are appropriate terms
when applied to the crimes for
which they were created, in order to maintain a level of discipline
suitable to the vertical command structure needed in a military
environment, but
that they are totally inappropriate when used to cover up allegations
of crimes within the Armed Forces.

152. Moreover, the ambiguity and unclear limits of criminal
definitions of this kind can undermine the juridical security
of human rights, giving rise to
arbitrary prosecutions, arbitrary preventive imprisonment, and
other rights violations. Ultimately, the principle violated in
this instance is that of the
legality of the crime or the punishment. Among the members of
the Armed Forces, the threat of such consequences fuels a permanent
fear of
facing an investigation or prosecution for revealing criminal
acts committed by superiors.

153. This situation is incompatible with the principles of
a democratic society, where the information available about the
activities of public officials
should be as transparent as possible and accessible to all social
groups. Allowing criminal definitions that can be used to curtail
freedom of
information and the free dissemination of ideas and opinions,
particularly in cases involving human rights violations and, consequently,
punishable
acts, is unquestionably a serious violation of freedom of thought
and expression and, above all, of societys right to receive
information and to
control the exercise of public power. In this regard, the Commission
noted the following in its 1994 Annual Report:

Articles 13(2) and (3) [of the American Convention] recognize
that the zone of legitimate State intervention begins at the point
where the
expression of an opinion or idea interferes directly with the
rights of others or constitutes a direct and obvious threat to
life in society.However,
particularly in the political arena, the threshold of State intervention
with respect to freedom of expression is necessarily higher because
of the
critical role political dialogue plays in a democratic society.
The Convention requires that this threshold be raised even higher
when the State brings
to bear the coercive power of its criminal justice system to curtail
expression. Considering the consequences of criminal sanctions
and the inevitable
chilling effect they have on freedom of expression, criminalization
of speech can only apply in those exceptional circumstances when
there is an
obvious and direct threat of lawless violence.22

154. The Commission therefore concludes that Peru violated
General Rodolfo Robles Espinozas right of freedom of thought
and expression enshrined
in Article 13 of the Convention.

Obligation to Respect Rights

155. The violations described in this case show that the Peruvian
State failed to comply with the commitment, set forth in Article
1(1) of the
Convention, to respect the rights and freedoms recognized therein
and to ensure their free and full exercise by all persons subject
to their
jurisdiction.

156. In this regard, the Court has stated that:

The first obligation assumed by the States Parties under Article
1(1) is "to respect the rights and freedoms" recognized
by the Convention. The
exercise of public authority has certain limits which derive from
the fact that human rights are inherent attributes of human dignity
and are,
therefore, superior to the power of the State. (Velásquez
Rodríguez Case, Judgment, op. cit., paragraph 165.)

157. Their second obligation is to "ensure" the free
and full exercise of the rights recognized by the Convention to
every person subject to their
jurisdiction. This obligation implies the duty of the States Parties
to organize the governmental apparatus and, in general, all the
structures through
which public power is exercised, so that they are capable of juridically
ensuring the free and full enjoyment of human rights. As a consequence
of
this obligation, the States must prevent, investigate and punish
any violation of the rights recognized by the Convention and,
moreover, if possible
attempt to restore the right violated and provide compensation
as warranted for damages resulting from the violation. (Ibid.,
paragraph 166.)

158. With regard to this second obligation, the Commission
notes that the State has tried to avoid its obligation of investigating
and punishing
those responsible for General Robless arbitrary arrest,
by means of Amnesty Law Nº 26.700, which stipulates, inter
alia, that:

Article 1.

A general amnesty is granted to military and civilian staff,
regardless of their military or duty status, being investigated,
denounced, or prosecuted,
under civilian or military jurisdiction, for acts committed on
the occasion of or as a consequence of their intervention in acts
related or associated
with criminal actions defined as undermining the Armed Forces,
insulting a superior, disobedience, generic falsehood, and those
for which an
amnesty would have been granted.

This amnesty does not cover acts related to the attack on Canal
Trece and Radio Samoa in Puno.

159. The Commissions jurisprudence has clearly established
that by promulgating and enacting amnesty decrees and laws a State
precludes "any
judicial possibility of continuing the criminal trials intended
to establish the crimes denounced; to identify their authors,
accomplices and accessories
after the fact, and to impose the corresponding punishments."23
Petitioners, relatives, and victims of human rights violations
are therefore curtailed
in their right to an impartial, exhaustive judicial investigation
for clearing up the facts and establishing the fate and whereabouts
of the victim.

160. One of the effects of amnesty decrees is to "weaken
the victims right to bring a criminal action in a court
of law against those responsible for
these human rights violations." Consequently, amnesty laws
directly prevent exercise of the right to prompt and effective
recourse to judicial
guarantees and they violate the States obligation of ensuring
free and full exercise of the rights recognized in the Convention.24
This is totally
incompatible with the States obligation to make reparation
for the consequences of an act or situation that constituted a
violation of its
international human rights commitments.

161. It is a generally accepted principle of international
law that a States failure to comply with a commitment causes
it to incur in the obligation
of making reparation (Aloeboetoe et al. Case, Reparations (ArtIcle
63(1) American Convention on Human Rights), Judgment of 10 September
1993,
paragraph 43). Liability is the necessary corollary of a right.
All rights at the international level impose a liability on the
State. If the obligation in
question is not satisfied, the liability requires adequate redress
to be made. Reparation is therefore obligatory following a States
failure to enforce
an international convention or commitment.

162. Within the inter-American human rights system, the provision
governing redress following a human rights violation is Article
63(1) of the
American Convention, which stipulates the following:

1. If the Court finds that there has been a violation of a
right or freedom protected by this Convention, the Court shall
rule that the injured party be ensured the enjoyment of his right
or freedom that was violated. It shall also rule, if
appropriate, that the consequences of the measure or situation
that constituted the breach of such right or freedom be
remedied and that fair compensation be paid to the injured party.

163. As the Inter-American Court of Human Rights has stated,
"this article codifies a rule of customary law which, moreover,
is one of the
fundamental principles of current international law, as has been
recognized by this Court (. . .) and the case law of other tribunals."
(Aloeboetoe et
al. Case, Reparations (Art. 63(1) American Convention on Human
Rights), Judgment of 10 September 1993, Series C, No. 15, paragraph
43.)

164. As the Inter-American Court of Human Rights has stated,
the obligations arising from the duty to made reparations for
human rights violations
"shall not be subject to modification or suspension by the
respondent State through invocation of provisions of its own domestic
law." (Aloeboetoe
et al. Case, Reparations, paragraph 44.)

165. In light of the foregoing, the Commission holds that the
Peruvian State violated, to the detriment of Major General Rodolfo
Robles Espinoza, its
general commitment to protecting and respecting human rights set
forth in Article 1(1) of the American Convention on Human Rights.

VI. ACTIVITIES FOLLOWING REPORT Nº 23/98

166. On 2 March 1998, during its 98th session, the Commission
adopted Report Nº 23/98 (Article 50) on this case. This report,
along with the
Commissions recommendations, were transmitted to the Peruvian
State on 23 March 1998 and the State was given two months, as
of the date the
report was sent, to comply with its recommendations.

167. By means of note Nº 7-5-M/197, date 19 May 1998,
the State transmitted to the Commission its reply to Report Nº
23/98. In this note, the
State maintained that the Commission, in the conclusions and recommendations
contained in Report No. 23/98, had adopted "a position that
was
not impartial in that having decided the admissibility of complaint
11.317 did not exempt it from including the position and evidence
presented by
Peru to the same extent that it had granted the petitioners
position in the inter-American proceedings related to this case."
The State then offered
a detailed "analysis" of the Commissions recommendations,
ratified the arguments and evidence it had invoked during the
proceedings before the
Commission, and stated that for a number of reasons it was unable
to comply with the Commissions recommendations.

168. With regard to the Commissions recommendation that
the State adopt all means of reparation necessary in order to
restore the honor and
reputation of General Robles Espinoza, Peru held that this would
imply an alteration of its domestic legal system, which contained
legal provisions
dealing with "rectifications and the responsibilities of
individuals who commit acts against honor and reputation."
It added that the victim had not
made use of domestic law to make his claims regarding such acts
and that "he was wrong to file a complaint with the IACHR,
seeking for it to
recommend measures for the restitution of a moral quality which,
had it been harmed (a claim that is not accepted), would be the
responsibility of
individuals and not of the State; it would also be an issue to
be assessed within a juridical and geographical reality, and not
within the ideal world
with which the esteemed Commission conducts its examinations."

169. The State added that "at the moment when Major General
Rodolfo Robles Espinoza (ret.) was granted amnesty under Law No.
26,699, the
proceedings against him for the crimes of undermining the Armed
Forces, insulting a superior, disobedience, and general mendacity
were dismissed,
his judicial record was deleted, the arrest warrants and bans
on leaving the country imposed on him were lifted, the sums previously
embargoed as
civil reparations were returned to him, and all other effects
implied by the granting of an amnesty . . . at the administrative,
level, General Robles
was placed in retirement . . . Consequently, the Amnesty Law repaired
and reinstated the honor and reputation of Major General Rodolfo
Robles
Espinoza (ret.)."

170. With regard to the Commissions recommendation that
the State immediately revoke Supreme Resolution 179 of 10 May
1993 and return to
General Rodolfo Robles Espinoza all the rights, honors, and other
privileges due to a member in active duty of the Peruvian Armed
Forces that were
arbitrarily suspended or annulled by that Supreme Resolution,
the Peruvian State argued that, "it was juridically impossible
because, under the
relevant provisions of the Military Status Law that govern military
employment and hierarchy and the statuses of active service, retirement,
and
reserve among the military, there is no provision within the military
service for the incorporation of an officer who does not comply
with the
corresponding age limits. In other words, General Robles (ret.)
does not meet those requirements and so giving him the status
of an officer in active
duty is impossible, unless the aim is to affect the rule of law
of the Peruvian nation-state." The State added that General
Robles Espinoza was
enjoying all the rights and benefits due to him as a retired general.

171. Regarding the Commissions recommendations that the
State revoke Amnesty Law Nº 26.700 and all other legal provisions
hindering the
investigation, trial, and punishment of the persons responsible
for persecuting, defaming, and harassing General Rodolfo Robles
Espinoza, particularly
the military justice authorities who ordered his arbitrary arrest
and prosecution, and that, consequently, compliance be given to
the ruling of the
33rd Criminal Court of 29 November 1996, ordering the Duty Provincial
Prosecutor to begin a criminal investigation into the violation
of the right to
individual freedom, through kidnapping, and of the right to due
process in respect of General Robles, Peru argued that, "an
amnesty law cannot be
revoked in an attempt to return things to how they were in order
to allow prosecution and/or conviction of the persons to whom
the amnesty was
granted. We should remember that the (amnesty) law remains in
force as long as the object that caused it to arise continues
to exist; its effects
impinge on the past. Otherwise there would be a violation of the
principle of juridical security that all States must uphold so
that their citizens can
be sure that their acquired rights are not going to change overnight."
The State added that since in one of the suits General Robles
Espinoza
brought in the domestic courts he did not seek punishment for
those who masterminded, perpetrated, acted as accomplices in,
and covered up the
crime of kidnapping carried out against him, the recommendation
made by the Commission as a result of the corresponding international
process
"goes beyond what was requested and, therefore, lacks legal
grounds in that it was not invoked by the complainant and is consequently
inadmissible."

172. With regard to the Commissions recommendation that
the State make a compensatory payment to General Rodolfo Robles
Espinoza for the
violations he suffered, Peru stated that for this, "the harm
and damages must be shown by means of trustworthy evidence within
the normal
proceedings established by a countrys laws," which,
according to the State, General Robles Espinoza had not done.

173. The Commission refrains from analyzing the Peruvian States
repeated claims regarding arguments made prior to the adoption
of Report No.
23/98, since under Article 51(1) of the Convention, what the Commission
must determine at this stage in the proceedings is whether or
not the
State has resolved the matter. In this regard it notes that the
State has complied with none of the recommendations made by the
Commission. The
States only concrete comment regarding compliance with the
Commissions recommendations states that Law No. 26.699 repaired
and restored
General Rodolfo Robles Espinozas honor and reputation. The
Commission must inform the Peruvian State that the law in question
was enacted on 6
December 1996, whereas the Commissions Report No. 23/98
was adopted on 2 March 1998. Hence, had the Commission believed
that the aforesaid
law repaired and restored General Rodolfo Robles Espinozas
honor and reputation, it would not have made that recommendation
to Peru.

174. With regard to the other recommendations that Peru maintains
it cannot implement because it is prevented from so doing by its
domestic laws,
the Commission believes it is important to remind the Peruvian
State that in ratifying the American Convention on Human Rights
on 28 July 1978, it
acquired the obligation of respecting and ensuring the rights
it contains with respect to all inhabitants of that country. Thus,
and in accordance
with Article 27 of the Vienna Convention on the Law of Treaties,
the Peruvian State cannot invoke its domestic laws as an excuse
for failing to
comply with the obligations it acquired by ratifying the aforesaid
Convention on Human Rights.

VII. CONCLUSIONS

175. For the reasons given above, the Commission concludes
that through the imposition of enforced retirement as a disciplinary
measure, the filing
of two criminal suits, and other threats made by means of direct
channels, the Peruvian State has submitted General Rodolfo Robles
Espinoza to a
process of harassment and intimidation in retaliation for his
revelations regarding human rights violations committed by members
of the Peruvian
Armed Forces . The Peruvian State has failed to comply with the
obligation of respecting and ensuring General Rodolfo Robles Espinozas
rights to
personal freedom (Article 7), a fair trial (Article 8), honor
and dignity (Article 11), freedom of thought and expression (Article
13), and judicial
protection (Article 25) as enshrined in the American Convention.
The Commission also concludes that as a result of the aforesaid
violations, the
Peruvian State has failed in its obligation to respect and ensure
human rights and guarantees as set forth in Article 1(1) of the
American
Convention.

VIII. RECOMMENDATIONS

176. Based on the analysis and conclusions of this report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS THAT
THE
PERUVIAN STATE SHOULD:

1. Adopt all the necessary means of reparation to restore the
honor and reputation of Major General Rodolfo Robles Espinoza.

2. Immediately revoke Supreme Resolution 175 of 10 May 1993,
and return to General Rodolfo Robles Espinoza all the rights,
benefits, honors, and
other privileges due to him as a member of the Peruvian Armed
Forces on active duty that were arbitrarily suspended or annulled
by that Supreme
Resolution.

3. Revoke all legal provisions preventing the investigation,
prosecution, and punishment of the individuals responsible for
harassing General Rodolfo
Robles Espinoza and, in particular, repeal Amnesty Law Nº
26.700.

4. Proceed to investigate and punish the individuals responsible
for the campaign of persecution, defamation, and harassment waged
against
General Rodolfo Robles Espinoza and, in particular, the military
justice authorities who ordered his arbitrary arrest and prosecution.

5. Proceed to comply with the 33rd Criminal Courts ruling
of 29 November 1996, upheld by the decision of the Specialized
Public Law Circuit of the
Lima Superior Court on 13 December 1996, ordering the Duty Provincial
Prosecutor to begin a criminal investigation into the violation
of General
Robless right of individual freedom, through kidnapping,
and right to due process.

6. Pay General Rodolfo Robles Espinoza a compensatory indemnification
for the violations he has suffered.

IX. NOTIFICATION

177. On December 9, 1998, the Commission approved Report 62/98
--the text of which precedes-- and transmitted it to the Peruvian
State and to
the petitioners, in conformity with the terms established in article
51(2) of the American Convention it granted an additional period
of 2 months to
Peru for it to comply with the preceding recommendations, calculated
from December 15, 1998, the date on which the report was transmitted.

178. On February 11, 1999, the Peruvian State communicated
that it did not agree with the considerations set forth in the
instant report, and
pointed out that its observations to Report 23/98 should be analyzed
by the Commission and should not be disregarded so lightly. The
State
reiterated its earlier arguments, and pointed out that compliance
with the recommendations contained in the present report would
be a legal
impossibility that would affect the juridical structure of the
Peruvian State and, especially, the "organization and discipline
of the military
institution." The State added that granted that by ratifying
the American Convention, Peru assumed the obligation to respect
the rights set forth
therein as regards all its inhabitants, it is also true that said
Convention sets forth that "the rights of each person are
limited by the rights of
others, by the security of all, and by the just demands of the
general welfare, in a democratic society."

179. By virtue of the foregoing considerations, the Commission,
in conformity with article 51(3) of the American Convention, concludes
that the
Peruvian State has not taken adequate measures to solve the violations
committed in detriment of the victim, and, in consequence, ratifies
its
conclusions and recommendations; decides to make the present report
public and decides to include it in its Report to the General
Assembly of the
OAS. The Commission also decides, in conformity with the provisions
which govern its mandate, to continue evaluating the measures
adopted by
the Peruvian State in regard to the recommendations contained
in the present report, until they have been totally complied with
by said State.

Approved by the Inter-American Commission on Human Rights in
the city of Washington, D.C. on the 23 day of the month of February
1999.
(Signed): Robert K. Goldman Chairman; Hélio Bicudo First
Vice Chairman; Claudio Grossman, Second Vice Chairman; Commissioners
Alvaro Tirado
Mejía and Jean Joseph Exumé.

Footnotes:

1 On 6 May 1993, General Robles denounced the perpetration
and perpetrators of the "La Cantuta" military operation.
He revealed the existence of a death squad, set up by Perus
National Intelligence Service (SIN), the officers involved, those
who had covered up the incident, and the individuals who had masterminded
it (President Fujimoris advisor and the Commander in Chief
of the Army).

2 Letter from General Rodolfo Robles Espinoza, dated 5 May
1993, published in the newspaper Expreso on Friday, 7 May 1993.

3 Supreme Council of Military Justice Document No. 561-S-CSJM,
informing the General Director for Special Affairs at the Ministry
of Foreign Relations about the criminal proceedings brought against
Major General Rodolfo Robles Espinoza.

4 Supreme Council of Military Justice Document No. 561-S-CSJM,
informing the General Director for Special Affairs at the Ministry
of Foreign Relations about the criminal proceedings brought against
Major General Rodolfo Robles Espinoza.

5 Ibid.

6 Ibid.

7 Verbatim extract from a copy of the poster attacking General
Rodolfo Robles Espinoza distributed around army barracks by the
Office of the Commander in Chief, submitted to the IACHR by General
Robles himself.

8 Note from the office of the Permanent Representative of Peru,
dated 5 September, 7-5-M/309, and enclosure.

9 Document No. 1045-94-JUS/VM, dated 16 August 1994.

10 Article 2(5): "To request, without giving reason, such
information as he requires and to receive it from any public agency,
within the timeframe set down in law, meeting the cost of the
request. This does not apply to information affecting personal
privacy and information expressly excluded by law or for reasons
of national security. Bank secrecy and fiscal confidentiality
may be overruled at the request of a judge, the attorney general,
or a congressional investigation commission in accordance with
the law and provided it is of relevance to the case in hand."

11 Article 2.6: "That public and private information systems,
be they computerized or not, shall not supply information affecting
personal and family privacy."

12 Article 2.7: "To honor and good reputation, to personal
and family privacy, and to ones own voice and image. All
persons affected by incorrect statements or affronted by any media
outlet shall be entitled to free, immediate, and proportionate
rectification, irrespective of the liabilities set forth by law."

18 As has been stated by the European Court of Human Rights:
"Decisions taken by administrative authorities which do not
themselves satisfy the requirements of (. . .) the [European]
Convention (. . .) must be subject to subsequent control by a
judicial body that has full jurisdiction." ECHR:
Schmautzer vs. Austria, (A/328-A), 1996, Vol. 21, paragraph 47.

19 Ruling of 29 November 1996, handed down by Judge Elba Greta
Minaya Calle of the 33rd Criminal Court in Lima, in the habeas
corpus action brought in favor of General Rodolfo Robles.

20 Article 13 of the American Convention states that:

1. Everyone has the right to freedom of thought and expression.
This right includes freedom to seek, receive, and impart information
and ideas of
all kinds, regardless of frontiers, either orally, in writing,
in print, in the form of art, or through any other medium of ones
choice.

2. The exercise of the right provided for in the foregoing
paragraph shall not be subject to prior censorship but shall be
subject to subsequent
imposition of liability, which shall be expressly established
by law to the extent necessary to ensure: (a) respect for the
rights or reputations of
others; or (b) the protection of national security, public order,
or public health or morals.

3. The right of expression may not be restricted by indirect
methods or means, such as the abuse of government or private controls
over newsprint,
radio broadcasting frequencies, or equipment used in the dissemination
of information, or by any other means tending to impede the
communication and circulation of ideas and opinions.